Hansfield Developments and Others v Irish Asphalt Ltd and Others

JurisdictionIreland
JudgeMr Justice Finnegan
Judgment Date23 January 2009
Neutral Citation[2009] IESC 4
CourtSupreme Court
Date23 January 2009
Hansfield Developments & Ors v Irish Asphalt Ltd & Ors

BETWEEN

HANSFIELD DEVELOPMENTS, VIKING CONSTRUCTION, MENOLLY PROPERTIES AND MENOLLY HOMES
PLAINTIFFS

and

IRISH ASPHALT LIMITED, LAGAN HOLDINGS LIMITED AND LAGAN CONSTRUCTION LIMITED
DEFENDANTS/RESPONDENTS

and

NATIONAL HOUSE BUILDING GUARANTEE COMPANY LIMITED
NON-PARTY/APPELLANT

[2009] IESC 4

Kearns J.

Macken J.

Finnegan J.

Record No. 361/2008

THE SUPREME COURT

PRACTICE & PROCEDURE

Discovery

Non party discovery - Relevance - Test of relevance - Whether party having documents in power or possession relevant to issue in proceedings - Whether documents sought necessary for disposing fairly of cause or matter - Oppression or prejudice caused by discovery to non party - Whether capable of being adequately compensated for by payment of costs - Discretion of court on appeal - Compagnie Financiere du Pacifique v Peruvian Guano Co [1882] 11 QBD 55, Allied Irish Banks plc v Ernest and Whinny [1993] 1 IR 375 and Ryanair plc v Aer Rianta cpt [2003] 4 IR 264 applied; O'Domhnaill v Merrick [1984] 1 IR 151, Cooper Flynn v Radio Telefís Éireann [2000] 3 IR 344 and Dome Telecom v Eircom [2007] IESC 59 [2008] 2 IR 726 considered - - Rules of the Superior Courts 1986 (SI 15/1986), O 31, rr 12 and 29 - Discovery refused (361/2008 - SC - 23/1/2009) [2009] IESC 4

Hansfield Developments v Irish Asphalt Ltd

Facts: The defendants and respondents sought discovery against a non party appellant of seven categories of documents pursuant to Order 31 Rule 29, Rules of the Superior Courts. The High Court made an order for discovery in respect of three of those categories and the non-party appellant sought to appeal the order. The documents related to inter alia documents in the possession of the non-party appellant as to the alleged presence of pyrite in a particular development and documents as to remediation works carried out. The proceedings related to claims in respect of a development that was alleged to contain unacceptably excessive levels of pyrite and that substantial remediation works were required.

Held by Finnegan J (Kearns & Macken JJ. concurring), that the basis for the seeking of such documents was misconceived. It could not have been said that the parties were present on the committee in these circumstances and thus that the documents in this category were neither relevant nor necessary. The High Court had not provided a reasoned judgment for this matter and the appeal would be allowed and the order for discovery set aside in respect of the three categories.

Reporter: E.F.

RSC O.31 r29

RSC O.31 r12

RSC O.31 r12(2)

RSC O.31 r12(3)

COMPAGNIE FINANCIERE DU PACIFIQUE v PERUVIAN GUANO COMPANY 1882 11 QB 55

BROOKS THOMAS LTD v IMPAC LTD 1999 1 ILRM 171

RYANAIR PLC v AER RIANTA PLC 2003 4 IR 264 2004 1 ILRM 241 2003/46/11374

TAYLOR v ANDERTON 1995 1 WLR 447

AIB v ERNST & WHINNEY 1993 1 IR 375

COOPER-FLYNN v RTE 2000 3 IR 344

AMBIORIX LTD v MIN FOR ENVIRONMENT (NO1) 1992 1 IR 277

DOME TELECOM LTD v EIRCOM LTD UNREP FENNELLY 5.12.2007 2007/15/3078 2007 IESC 59

STEPHENS v PAUL FLYNN LTD UNREP KEARNS 25.2.2008 2008 IESC 4

MARTIN v MOY CONTRACTORS LTD UNREP SUPREME 11.2.1999 1999/17/5117

1

Judgment of Mr Justice Finnegan delivered the 23rd day of January 2009

2

Judgment delivered by Finnegan [nem diss]

3

In this judgment I shall refer to the plaintiffs as "Hansfield", the defendants and respondents on this appeal as "Lagan" and the non-party appellant as "Homebond". By notice of motion issued on the 1 st October 2008 Lagan sought against Homebond discovery of seven categories of documents pursuant to the Rules of the Superior Courts, Order 31, Rule 29. By order of the 4 th November 2008 the High Court made an order for discovery in respect of three of those categories. Against that order Homebond appeals.

The Issues in the Action
4

Hansfield comprises three related companies carrying on business as house builders. It is involved in three developments in North Co. Dublin at Drynam Hall, Kinsealy, Co. Dublin, Beaupark, Clongriffen, Co. Dublin and Myrtle, Baldoyle. Lagan again comprises three related companies which are part of the Lagan Group. For present purposes Lagan were the suppliers of aggregate to Hansfield for use as infill beneath the ground floor slab of dwellings at each of the said three developments in the years 2003 to 2006. The source of some of that aggregate is a new quarry opened by Lagan at Bay Lane, Kilshane, Co. Dublin. Hansfield suffered problems at each of the said three developments which it attributes to the aggregate supplied by Hansfield. The statement of claim pleads that the aggregate was defective in three particulars only one of which is relevant to this appeal. It is pleaded that the aggregate supplied contained unacceptably excessive levels of pyrite, that is iron sulphide, which rendered it unsuitable. Pyrite contains sulphur and when combined with water and oxygen in a warm environment sulphuric acid is produced. When sulphuric acid comes into contact with calcite, that is calcium carbonate, and water there is a resulting chemical reaction which produces gypsum crystals as a precipitate. Each of those elements are present within and under the floor slabs of dwellings in each of the three developments. Pyrite and calcite are present in the infill supplied by Lagan. When gypsum crystals are produced by the chemical reaction they increase the volume of material comprising the infill causing vertical heaving or upward pressure within the floor slabs and through the floor slabs at ground level. The vertical heaving results in the bulging and cracking of floors and the cracking of partition walls and door frames and pressure on the rising walls causing them to push outwards. In consequence substantial remediation works are required. The cost of such works and consequential damages are claimed and amount to several million euros. The defence delivered denies that the aggregate contained pyrite and denies that any such chemical reaction took place. Further such defects as now appear in dwellings constructed by Hansfield, it is pleaded, were caused by defective design or construction. While the statement of claim runs to some seventeen pages and the defence to thirty pages and eighty six paragraphs the foregoing brief statement of the relevant issues is sufficient for present purposes.

Rules of the Superior Courts Order 31
5

The Rules of the Superior Courts, Order 31, Rule 29 provides as follows:-

"Any person not a party to the cause or matter before the court who appears to the court to be likely to have or to have had in his possession custody or power any documents which are relevant to an issue arising or likely to arise out of the cause or matter or is or is likely to be in a position to give evidence relevant to any such issue may by leave of the court upon the application of any party to the said cause or matter be directed by order of the court…to make discovery of such documents… The provisions of this order shall apply mutatis mutandis as if the said order of the court had been directed to a party to the said cause or matter provided always that the party seeking such order shall indemnify such person in respect of all costs thereby reasonably incurred by such person and such costs borne by the said party shall be deemed to be costs of that party for the purposes of Order 99."

6

As the other provisions of Order 31 apply mutatis mutandis to discovery ordered under Rule 29 regard must be had to Order 31 as a whole and in particular to the provisions of Rule 12 introduced into the Superior Court Rules by S.I. No.233 of 1999. Rule 12 sub rules (2) and (3) provide as follows:-

7

2 "(2) On the hearing of such application the court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or by virtue of non-compliance with the provisions of sub rule 4(1), or make such order on terms as to security for the costs of discovery or otherwise and either generally or limited to certain classes of documents as may be thought fit.

8

(3) An order shall not be made under this rule if and so far as the court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs."

9

In order to succeed on an application for discovery the onus is on the applicant to show that the person against whom discovery is sought has or is likely to have in his possession or procurement documents which are relevant to an issue in the proceedings. It is, however, not necessary that the applicant be in a position to establish specific documents as distinct from categories of documents which prima facie are relevant. The degree of particularity required will depend on the nature of the case.

10

The classic test for relevance is that in Compagnie Financiere du Pacifique v Peruvian Guano Company [1882] 11 Q.B.D. 55 at p.63 per Brett L.J.:-

"It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words 'either directly or indirectly', because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences."

11

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